E-Verify – It’s Yes, It’s No!

Tracking the progress of E-Verify legislation in the U.S. is like listening to Katy Perry’s Hot n Cold song. One minute, one state is voting to require mandatory E-Verify while the next minute, another state is preparing to vote on banning mandatory E-Verify. (See the LawLogix E-Verify Map here.) Hot and cold indeed!

In recent years, legislation involving mandatory E-Verify provisions on a statewide level have been largely motivated by economic and migration factors – at least, upon first glance, the legislation is written in a way to address those particular rationales. One could mistakenly presume that the foreign-born population for the states that have passed some form of mandatory E-Verify Program requirement on a state level would contain a large foreign-born population. However, a closer look at the data from the U.S. Census Bureau (as presented by the Immigration Policy Center) reveals a much different story.

According to the statistics (see chart below), California is the only state that has affirmatively passed legislation, which has not been enjoined by a court, forbidding the state from requiring employers to enroll in the E-Verify Program as a mandatory requirement. Even though its foreign-born population is more than a quarter of its entire state population, this recent legislation swings far to the left of the pendulum by forbidding state and municipal agencies from mandating the use of E-Verify. Illinois had an even stricter policy expressly forbidding state agencies from enrolling in the E-Verify program. (This policy has been relaxed after 2010). Yet, even Illinois’ foreign-born population of 13.7% is comparatively high.

Meanwhile, on the right side of the pendulum are nine states that have enacted statewide mandates requiring employers to enroll in the E-Verify Program. Upon a closer look at its foreign-born population though, the numbers average about 6.36% of each state’s total population.

Comparing the data between the states, it begs the question, how much does economic and migration factors truly come to play when making policy decisions on a statewide level? Wouldn’t it make sense for states with small foreign-born populations to allow employers the autonomy of deciding when to enroll in E-Verify, rather than mandating it? Alternatively, wouldn’t a state like California with a large foreign-born population and multiple municipalities already mandating E-Verify, allow its municipalities the opportunity to dictate how and when to enroll in E-Verify instead of barring the program entirely? There are no easy answers.

New Hampshire, for instance, has taken a different approach to rationalizing the federal E-Verify Program. According to the Census data, the Granite State’s foreign born population accounts for only 5.3% of its entire state population. For our history buffs, New Hampshire was the first state to ratify its own state constitution. For our political buffs, the state’s motto “Live Free or Die” is proudly emblazoned on its vehicle tags, which is what makes this state’s latest foray into legislating the E-Verify Program so telling.

Currently, New Hampshire has two house bills, 1549 and 1620, awaiting their fate. The former prohibits the use of the E-Verify system and DMV records for E-Verify while the latter mandates the use of E-Verify. Both bills were introduced early this January and both have been reviewed by various committees. In a couple of days, we’ll find out soon enough how quickly either legislation is passed.

Rather than focusing on the economic and migration issues that seem to entrance many of its southern and western neighbors, the text of H.B. 1549 focuses instead on federalist concerns and the ever-encroaching arm of the federal government in the everyday transactions of the state. The text cites the “concerns of the Real ID Act of 2005, which prompted the state of New Hampshire to reject participation in a national identification system” and finds that “the E-Verify System is contrary and repugnant to Articles 1 through 10 of the New Hampshire Constitution as well as Amendments 4 through 10 of the Constitution for the United States of America.” (Yes, you read this correctly!) According to the latest hearing last month, this bill “ought to pass.”

This rationale makes the New Hampshire’s motto to “Live Free or Die” that much more poignant. It is novel, brazen and even admirable in its approach at policy-making by revisiting the pillars in which this country was founded, our federal Constitution. But alas, how long will it be before the federal government mandates a nation-wide enrollment of E-Verify?

At a low of 10% approval rating, federal congressional members will probably take a long time to have a meaningful discussion, rather than a rhetoric-filled debate, about the issues involving E-Verify. Whether or not this Congress can work out an agreement during this session is the big question. Until then, we’ll continue to report on the latest E-Verify legislative developments. Where else would you go for the latest and most comprehensive legislative updates on E-Verify?

About The Author

Ann Cun is a U.S. based immigration attorney who has helped companies in the technology, science, business, sports, entertainment and arts fields secure complex work visas for their employees. With more than a decade of experience as a paralegal and attorney, Ms. Cun possesses a stellar record of success. Her legal expertise also includes conducting internal I-9 audits for companies and developing I-9 compliant strategies and solutions. She is a graduate of UCLA and UC Hastings School of Law and has been invited to speak by the Bar Association of San Francisco and the American Immigration Lawyers Association on U.S. immigration related topics, as well as other international conferences. Ms. Cun is a contributing author and currently serves as Counsel and Principal Editor for LawLogix Group.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.